Effective 28 Aug 1963

400.2-314. Implied warranty — merchantability — usage of trade. — (1) Unless excluded or modified (section 400.2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.

(2) Goods to be merchantable must be at least such as

(a) pass without objection in the trade under the contract description; and

(b) in the case of fungible goods, are of fair average quality within the description; and

(c) are fit for the ordinary purposes for which such goods are used; and

(d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and

(e) are adequately contained, packaged, and labeled as the agreement may require; and

(f) conform to the promises or affirmations of fact made on the container or label if any.

(3) Unless excluded or modified (section 400.2-316) other implied warranties may arise from course of dealing or usage of trade.

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(L. 1963 p. 503 § 2-314)

(1979) Sale of used or second-hand goods is covered by provisions of the Uniform Commercial Code and an implied warranty of merchantability may arise. Worthey, et al. v. Specialty Foam Products, Inc. (A.), 591 S.W.2d 145.

(1981) Manufacturer may not disclaim implied warranty of merchantability to an ultimate consumer by merely including a disclaimer in a contract with a middleman or buyer who holds for resale only. Groppel Co., Inc. v. U.S. Gypsum Co. (A.), 616 S.W.2d 49.

(1981) Recovery for economic loss resulting from manufacture and sale of unmerchantable product is limited to damages proximately caused by defective product, and buyer has obligation to mitigate damages. Groppel Co., Inc. v. U.S. Gypsum Co. (A.), 616 S.W.2d 49.

(1981) Subcontractor was entitled to recover from manufacturer for economic loss allegedly resulting from manufacture and sale of alleged unmerchantable product. Groppel Co., Inc. v. U.S. Gypsum Co. (A.), 616 S.W.2d 49.

(1981) Implied warranties extend to remote purchasers. Groppel Co., Inc. v. U.S. Gypsum Co. (A.), 616 S.W.2d 49.